Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. By order of 31 October 1985, in proceedings brought by the German company 3 Glocken GmbH and by Mrs Gertraud Kritzinger against Provincia autonoma di Bolzano, which had accused them of infringing certain Italian provisions on trade in pasta products, the pretore of Bolzano referred the following questions to the Court under the second paragraph of Article 177 of the EEC Treaty:
2. As the questions submitted by the two courts are the same, I shall consider them together. However, before doing so I think it is appropriate to make a number of preliminary observations with a view to ridding the problem brought before the Court of the trivial image which certain observers attach to it and to identify the economic and political realities with which the judgment of the Court should concern itself.
3. Let us start with the inconsistencies. In Case 407/85, the Commission states that total abandonment of the rules on this matter in Italy, France and Greece would result in a degree of substitution of common wheat for durum wheat in the manufacture of pasta products in those countries and, hence, an increase in the expenditure to be borne by the Community budget. The Commission is therefore clearly against dispensing entirely with the provisions in question and does not expect that the States involved would consider such a radical measure (emphasis added). In Case 90/86, on the other hand, the Commission proposes that the Court should rule that Article 30 ... does not permit a Member State to extend to products lawfully manufactured and marketed in another Member State the obligation ... to use only durum wheat in the manufacture of dry pasta products intended to be marketed within ... that State.
4. These general considerations having been discussed; it is time to examine the provisions in question, but without analysing — this is done excellently in the report for the hearing — the many and intricate details thereof. Let me say straight away that Law No 580 of 4 July 1967 is not — as it was described at the hearing by the Commission — a mere recipe-law but is rather a wide-ranging and systematic measure containing all the rules concerning the manufacture and marketing of cereals, flour, bread and pasta products. In particular, pasta products are governed by rules contained in Articles 28 to 36, in Title IV, and by a number of transitional provisions: including Article 50 (1), which contains the prohibition with which the questions submitted by the pretori of Bolzano and Milan are concerned.
5. Having thus highlighted the main aspects and purposes of the Italian legislation, I think that it is appropriate to consider its impact on the European market and, in more general terms, the developments in recent years in the production and marketing within the Community of durum wheat pasta products. For that purpose, I shall rely upon the documents submitted by the Unipi (Annexes Nos 5, 10 and 17) and the volumes published annually by the Italian Central Statistical Office (Istat).
6. The references which I have just made to aid and to the intervention price for durum wheat and common wheat bring me to the matter of Community policy and the rules on the common organization of the markets in cereals. To summarize, and having regard to the details given on the subject in the Report for the Hearing, the present situation in the Community with respect to durum wheat may be described as follows:
7. The recent agreement concluded between the EEC and the United States on Community exports of pasta to that country also forms part of the Community policy and provisions concerning durum wheat. The events date back to 1985. For reasons which it would be superfluous to go into here, the Americans decided, in disregard of their GATT commitments, to levy additional duties on imports of European pasta; and, considering that these measures caused significant injury to the Community producers concerned (that is to say the growers of durum wheat and pasta makers), the Council reacted by increasing the duty on American exports of citrus fruit and nuts (Regulation (EEC) No 3068/85 of 27 June 1985, Official Journal 1985, L 292, p. 1). The negotiations lasted for over a year and were very difficult. Finally, with a view to putting an end to a dispute which was damaging to all parties and in order to avoid a new conflict... at a particularly critical moment for the world trading system, the parties entered into the settlement of 15 September 1987 (Official Journal 1987, L 275, p. 38).
8. I referred a few moments ago to Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling of foodstuffs for sale to the ultimate consumer (Official Journal 1979, L 33, p. 1), and I now propose to consider certain aspects of it. Let me say straight away that it is a matter of great importance. The rules by means of which the directive ensures that purchasers can determine the nature and composition of the products in question have proved decisive in two respects: on the one hand, it is on the basis of those rules that the Court has resolved all the recent cases concerning the compatibility of national laws with Community provisions on the designation of foodstuffs which prevented the free movement of similar products legally marketed in other Member States; on the other hand, those rules have enabled the Commission to say that, since consumers are adequately protected thereby, harmonization of internal provisions regarding the composition and manufacture of foodstuffs is no longer necessary, except for reasons of protection of health. In particular, it would be superfluous to adopt new rules concerning pasta products if in fact the directive in question already requires that the consumer be made aware of the nature of the raw materials used in the manufacture of the products by means of a list thereof on the label (Communication to the Council of 19 March 1979, COM(79) 128 final).
9. In the case of champagne there is a Community measure — Council Regulation (EEC) No 3309/85 (Official Journal 1985, L 320, p. 9) — which helps consumers not to confuse champagne with sparkling wines produced by the same method but in areas of the Community other than the French Champagne district. The experts understood that, in designating such beverages, a distinction should be made between mandatory information needed to identify a sparkling ... wine and optional information designed mainly ... to distinguish it sufficiently from other products in the same category which compete with it on the market (recital No 3); and for that purpose it was decided to prohibit producers who do not operate in the Champagne district from referring directly or indirectly to the method of preparation known as methode champenoise, although that wording has been used for a considerable time and is even subject to specific rules in some Member States (Italy and the Federal Republic of Germany). I would add that, precisely for that reason, the prohibition was made operative as from 1994, that is to say on the expiry of a period corresponding to eight winegrowing years (third subparagraph of Article 6 (5)).
10. Before I again take up the thread of the reasoning which I have developed so far, another matter remains to be considered which is closely connected with the one that I have just examined: the content and the fate of the proposal for a directive on pasta products presented by the Commission on 7 November 1968 (Journal Officiel C 136, p. 16).
11. A preliminary observation is called for before I consider the substance of the case. The questions submitted for a preliminary ruling derive from the fact that in Bolzano and Milan the supervisory authorities found in Mrs Kritzinger's shop and on Mr Zoni's premises pasta products imported from the Federal Republic of Germany, but made from a mixture of common wheat and durum wheat, which therefore could not be marketed in Italy by virtue of Law No 580.
12. We now come to the substance of the case. Gertraud Kritzinger, 3 Glocken, Giorgio Zoni, the Netherlands Government and the Commission propose that the Court should give the following answer to the questions submitted by the two national courts: Article 30 of the EEC Treaty does not allow a Member State to impose the obligation that only durum wheat may be used in the preparation of dry pasta products intended to be marketed in the territory of that State, even if that obligation was imposed solely in order to safeguard the superior properties of pasta manufactured using only durum wheat, does not entail any discrimination and was not introduced in order to pursue protectionist aims. The opposite view is expressed by the Provincia autonoma di Bolzano, the civil parties in the proceedings before the pretore of Milan, and the French, Italian and Greek Governments. In their opinion, by virtue of the requirements of consumer protection and fair trading that obligation cannot be incompatible with Article 30.
13. I referred a few moments ago to the judgment in the beer case; and, if only because it embodies a masterly summary of the jurisprudence of the Court on this subject, I intend to take it as the starting point for the argument upon which I shall base my proposal for the answers to be given to the questions submitted by the national courts. The German Government — it will be remembered — had maintained that the purity requirement imposed by Article 10 of the Biersteuergesetz was essential for the protection of German consumers because, in their minds, the word Bier could not be dissociated from the image of a beverage produced using only the ingredients prescribed by law; and the Court's reply deserves to be reproduced in full.
14. Bearing this in mind, let us now imagine that we are in the pasta products department of a supermarket in Luxembourg (to which, let it be said parenthetically and metaphorically, we should have been taken by the Commission; but by now we know that in these proceedings the Commission, like Santiago the fisherman in Hemingway's The Old Man and the Sea, has often fallen asleep dreaming of lions). Before us there they are four packets of pasta, of which the visible sides look like this:
15. The objection will be made that those problems can be resolved even without compelling the Council to undertake a far-reaching reform: more specifically, in order to provide better protection for Italian consumers than is provided by Directive 791/112, the Italian legislature could, after removing the existing purity requirement which prevents imports of common-wheat pasta, impose upon Community manufacturers of spaghetti the obligation to print on the front of the packet the description pasta di farina di grano tenero. I doubt, however, whether such an expedient would be sufficient to establish, as required by the beer judgment, a system of consumer information which can operate perfectly well.
16. This point having been reached, one conclusion seems to me to be obvious: national shoncuts are not a tenable proposition and are even liable to have pernicious effects. To liberalize Community trade in pasta products and then to leave matters to Member States would not only make it impossible for their legislative authorities to devise measures providing appropriate protection for the interests of producers and consumers. Such an inchoate manoeuvre would do worse: it would encourage the various pasta makers, in the awareness that they could rely upon inadequate rules on designation and presentation, to win new markets by manufacturing products which would be sold at ever decreasing prices, but would be increasingly misleading as regards their identity and nature.
17. At the present time, the question submitted by the national courts cannot be answered clearly — or at least the answer would only be regarded as clear by someone who was prepared to put up with a situation which would be unsatisfactory in any case. Let us bear in mind the consequences of the alternatives before us. A ruling of compatibility would endanger, perhaps for good, the movement of pasta products lawfully manufactured in eight of the twelve Member States and for that reason would threaten the solidity of one of the pillars upon which the Community edifice rests. On the other hand, a ruling of incompatibility would (a) leave without proper defence not only the Italian durum-wheat pasta consumer but also the Community purchaser of spaghetti of the most varied composition; (b) reward and encourage inertia on the part of the Brussels legislature, justifying its claim that it had resolved the problem for once and for all by means of the horizontally applicable general provisions of Directive 79/112/EEC; (e) de facto, but irretrievably, impair the conditions upon which the Community policy for durum wheat and the agreement between the EEC and the United States on the production and marketing of pasta manufactured from that cereal are based.
18. In the light of the foregoing considerations I suggest that the Court should give the following answer to the questions submitted by the pretore of Bolzano and pretore of Milan by Orders of 31 October 1985 and 19 March 1986:
1 Translated from the Italian.
2 At this point in the roneoed version of the Opinion there was a photograph of the four packets, which, for technical reasons, cannot be reproduced here.